County’s Rezoning Decision Overturned In Court

BERLIN — A visiting Worcester County Circuit Court judge this week overturned last year’s controversial property rezoning decision by the Worcester County Commissioners, but an attorney for the property’s owners has confirmed the ruling on the land off Route 589 will be appealed.

The roughly 30-acre parcel near Ocean Pines is owned by Jack Burbage through Burbage-Melson Inc. It currently exists in an A-1 agricultural zone. In August of 2012, after months of hearings and discussion, the County Commission voted to change the property’s zoning from A-1 to C-2 commercial. Burbage requested the re-zoning with the expectation that the property would host a new medical campus, though there was no official commitment, and commercial zoning would allow a wide range of uses.

At the time, Burbage’s attorney, Hugh Cropper, had successfully argued that the installation of slot machines and further expansion of nearby Ocean Downs racetrack represented a major change to the neighborhood that would justify altering the property from agricultural to commercial zoning. A group of petitioners protested the decision, however, and on Monday Judge Raymond Beck overturned the re-zoning after an open court hearing.

“The commissioners had re-zoned the property on the grounds that there had been a substantial change in the neighborhood since the last comprehensive re-zoning in that area in November of 2009, and our position was there wasn’t any evidence of a substantial change in the character of the neighborhood since 2009,” said Raymond Smethurst, attorney for the petitioners.

Smethurst and Cropper agreed that their conflicted arguments both centered on the Casino at Ocean Downs and whether the addition of slots as well as other expansions altered the neighborhood in a way not anticipated in the county’s current comprehensive plan.

“The primary issue in the case was whether there has been a substantial change in the neighborhood … I think there’s no question that’s a change in the character of the neighborhood,” Cropper said Wednesday.

Smethurst and the petitioners he represented believe that’s not accurate. While he acknowledged that the casino wasn’t built until after the commission did their most recent comprehensive re-zoning in 2009, Smethurst argued that slots were already a “known factor” by that point.

“The casino was built after 2009 but it was something that was known about before the County Commissioners did their comprehensive re-zoning in 2009,” he said. “The casino was a known factor at the time they made their comprehensive re-zoning in 2009.”

Cropper had a different opinion, saying, “I totally disagree with that.”

The comprehensive plan doesn’t consider all of the possible expansions to Ocean Downs, Cropper continued, which besides slots could include in the near future amenities like a bowling alley and movie theatre and possibly table games.

“It had nothing to do with the intensification of the use, how big it would be,” he said. “Now the laws changed where they’re going to allow table games.”

Having attended the November 2009 comprehensive re-zoning, Cropper added that, in his opinion, the commissioners were not operating with the casino as a “known factor” as Smethurst argued.

“I was at the hearing and I can tell you for a fact the County Commissioners did not contemplate the casino coming when they made this zoning decision,” he said.

The court sided with the petitioners however, ruling against Burbage-Melson Inc, Silver Fox LLC and Worcester County, which was a co-respondent in the hearing since the County Commission had previously approved the re-zoning. Attorney Sonny Bloxom was unavailable for comment this week.

The commissioners had not been unanimous on the approval last August, though, with the vote split at 4-3. As one of the officials that voted against the re-zoning, Commissioner Virgil Shockley saw the ruling this week as affirmation of a prediction he made more than six months ago that “a judge will take 20 minutes and laugh” the case out of court.

By all accounts, the hearing lasted about two hours and it’s doubtful there was much comedy involved. Still, Shockley chalked it up as a victory and took a jab at the four commissioners who had voted in favor of re-zoning.

“It’s good to know that we had a judge that upheld the rules for re-zoning,” said Shockley. “You just can’t make up your own rules even if you’re an elected official.”

While a judge may have overturned the re-zoning now, Cropper confirmed that his clients will be filing an appeal to the decision in the near future.

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